H.L.A. hart and the practical difference thesis

Legal Theory

Volumn 6, Issue 1, 2000, Pages 1-43

  Himma, Kenneth Einar ^a  

^a UNIVERSITY OF WASHINGTON   (United States)

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EID: 85022431485     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200061012     Document Type: Article

References (24)

1. H.L.A. Hart, THE CONCEPT OF LAW 185-86 (2nd ed., 1994). Hereinafter referred to as CL.
2. Nevertheless, Hart had some reservations about the Incorporation Thesis. Hart, a skeptic about moral objectivism, believed that the Incorporation Thesis presupposes that moral norms have an objective status and hence conditioned his acceptance of the Incorporation Thesis on the truth of moral objectivism. See Kenneth Einar Himma, Incorporationism and the Objectivity of Moral Norms, 5 LEGAL THEORY 415 (1999), for a discussion of Hart's worries on this count.
3. Joseph Raz, Authority, Law, and Morality, in Joseph Raz, ETHICS IN THE PUBLIC DOMAIN (Oxford: Clarendon Press, 1994). Hereinafter referred to as ALM.
4. Scott J. Shapiro, On Hart's Way Out, 4 LEGAL THEORY (December 1998). Hereinafter referred to as HWO.
5. It is important to be clear at the outset on the locution “essential function.” As I use the term, f is an essential function of an artifact A if and only if it is a necessary condition for being an A that an object be capable of performing f. The locution “conceptual function” is often used to refer to this kind of function. In any case, I intend by “essential function” nothing more ontologically ambitious than this.
6. Note that the relevant logical relation differs in each of the versions. While the relevant relation in the Necessity Version is the consistency relation, the relevant notion in the Sufficiency Version is the conformity relation. The Sufficiency Version could not use the consistency relation because it would validate inconsistent norms; there are many propositions P such that P and ~P are each consistent with morality. A law that requires drivers to drive on the right side of the road is consistent with moral principles, as is a law that requires drivers to drive on the left side. Likewise, the Necessity Version could not use the conformity relation because it would result in too few norms. Many laws are intended as solutions to coordination problems and hence do not reproduce the content of some moral norm.
7. Ronald Dworkin, TAKING RIGHTS SERIOUSLY (Cambridge: Harvard University Press, 1977). Hereinafter referred to as TRS.
8. I use the term “validity” to describe the legal status of such principles even though Dworkin sometimes seems to suggest that only all-or-nothing rules can be legally valid (TRS 41). Nothing of importance turns on this usage.
9. See Jules Coleman, THE PRACTICE OF PRINCIPLE, forthcoming.
10. The distinction is typically made in terms of primary and secondary rules, but some secondary rules, like those governing formation of contracts, also govern the behavior of law-subjects. For this reason, I prefer to talk in terms of first-order rules and meta-rules.
11. H.L.A. Hart, Commands and Authoritative Reasons, reprinted in H.L.A. Hart, ESSAYS ON BENTHAM 253 (1982).
12. Scott J. Shapiro, The Difference that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY 33-62 (Brian Bix ed., 1998), hereinafter referred to as DR.
13. The following analysis adopts the spirit, if not the letter, of David Lewis's analysis in COUNTERFACTUALS (1973). The argument can easily be reformulated in terms of Lewis's more complicated machinery. I suppress the details of Lewis's semantics purely for considerations of readability.
14. See Lewis, COUNTERFACTUALS, at 16, 24-5.
15. It is clear from Shapiro's discussion and from the content of the Feasibility Thesis that it is a constraint on accounts of motivational guidance-and not on accounts of epistemic guidance. Thus, “instrumental guidance” in this discussion should be construed as synonymous with “motivational guidance.”
16. As we also saw in the last section, a dispositional counterfactual with an impossible antecedent can be meaningfully true, but this does not mean that they are always meaningfully true. See, e.g., note 18, It is clear from Shapiro's discussion and from the content of the Feasibility Thesis that it is a constraint on accounts of motivational guidance-and not on accounts of epistemic guidance., In this instance, only one of the two counterfactuals can be meaningfully true-namely, the one that reflects P's own beliefs about what she would do if R were not a rule. If she has no such belief about what she would do, then both counterfactuals are vacuously true.
17. Lon L. Fuller, A Reply to Professors Cohen and Dworkin, 10 VILLANOVA LAW REVIEW 655, 657 (1965).
18. Lon L. Fuller, THE ANATOMY OF THE LAW 65 (1976). Indeed, on Fuller's view, such departures are sometimes necessary to cure certain kinds of injustices arising from circumstances not foreseen by lawmakers (ML 51-53).
19. John Austin, LECTURES ON JURISPRUDENCE OR THE PHILOSOPHY OF POSITIVE LAW 5 (1977) (hereinafter referred to as LJ).
20. Ronald M. Dworkin, LAW'S EMPIRE 93, 109, 127 (1986).
21. I am being generous here: The word “law” in the sentence “law has an essential function” is more plausibly construed as referring to law as an institution. Indeed, we would not generally refer to the function of legal norms by talking in terms of “law's essential function.”
22. If this is correct, it seems to falsify Stephen Perry's view that morally normative argument is relevant with respect to determining the essential function of an artifact. Thus, he writes of a disagreement as to whether the function of nuclear weapons is to kill or to deter: “Whatever may be the relative merits of these two positions, I hope it is at least clear that this is a moral disagreement.” Stephen R. Perry, The Varieties of Legal Positivism, 9 CANADIAN JOURNAL OF LAWAND JURISPRUDENCE 372 (1996). Perry is correct about this, but neither of these functions can plausibly be characterized as an essential function. What distinguishes nuclear weapons from other weapons is that nuclear weapons produce large explosions that leave long-term radioactive contamination. It is because nuclear weapons have this essential function that they can be used either to deter or to kill.
23. The idea that the rule of recognition defines a general legal obligation of citizens to obey the first-order norms validated by the rule is implausible. It would be silly, for example, for the state to attempt to prosecute a defendant for murder and for a separate charge of failure to obey a rule valid under the rule of recognition.
24. Of course, Raz can argue that what determines whether the Inclusian system is a legal system is whether it claims legitimate authority, which can be determined by empirical means. But this, of course, is no help to Shapiro. Chances are, Shapiro would characterize Inclusia as a legal system simply on the strength of the empirical similarities between Inclusia and Exclusia and then infer that judges are being motivationally guided by the first-order norms valid under their rule of recognition.